Nations.

More precisely, it was before the PCIJ in its Advisory Opinion of 15 May 1931 in the Access
to German Minority Schools in Upper Silesia.34 The task of the Court there was to determine the
character, force and scope of an arrangement adopted by the Council in its Resolution of 12 March
1927. The Court set out to identify the Council's intention, proof of which was found mainly in a
Council's later rele vant Resolution.35 Hence, the examination of the intention of the parties with
the aid of subsequent practice was the interpretive priority according to the ratio decidendi of the
Court in the aforementioned case.36

Leaving the quarters of the World Court, of particular interest is the Decision of the ICTY in the well-
known Tadic case, where the Appeals Chamber had to construe in extenso the Statute of the
Tribunal, which was adopted by a Security Council Resolution. The Appeals Chamber, like the ICJ in
the Namibia case, made no reference to the VCLT, which is more than telling in this regard.
However, it considered at some length its general approach to interpretation of the jurisdictional
provisions of its Statute. More analytically, after considering briefly the 'literal interpretation' of the
Statute, it stressed that 'in order better to ascertain the meaning and scope of these provisions, it
will therefore consider the object and purpose behind the enact- ment of the Statute'

ral, noteworthy also is an obiter dictum in the case of Laguna del Desierto between Chile and
Argentina. There, the Arbitral Tribunal held that there are rules of international law, which can be
applied for the interpretation of any legal act, whether this is a treaty, or a unilateral act, or arbitral
award, or resolutions of an international organization. These are the rules that derive from the
natural and ordinary meaning of the terms and from the reference to the context and the principle
of effectiveness

40 See Arbitral Award of 21 Oct 1994. Dispute concerning the course of the frontier between BP 62
and Mount Fitzroy (Argentine/Chile), in RGDIP (1996) 552.

Resolutions in question are and should be construed in accordance with a coherent set of guiding
interpretive principles, which, in turn, should pay due respect to the legal nature of the Resolutions,
their institutional setting and their overarching purpose in the international arena. Having these in
mind, it is suggested to have recourse to a different analytical approach to the question of
interpretation that would be more apposite to them in order to build

3. The most coherent analytical framework for the hermeneutics of the Resolutions of Security
Council Drawing insights from Stanley Fish and Ian Johnstone, it seems feasible to propound the
thesis that the interpretive enterprise in question should be guided and concomitantly constrained
by the assumptions, practices and conventions inherent in the institutional 'interpretive' community
of the Security Council. The central notion to the above-mentioned thesis is the idea of 'interpretive
communities'.44 The concept was developed by Stanley Fish, a literary theorist, who claimed that it
has explanatory power both in his field and in the field of legal interpretation.45 He never defined
the concept but rather explained it in terms of function

46 Fish explains the concept as follows: '[t]he notion of interpretive communities was origi- nally
introduced as an answer to a question that had long seemed crucial to literal studies. What is the
source of interpretative authority: the text or the reader? [...] What was required was an explanation
that could account for both ... and that explanation was found in the idea of an inter- pretive
community, not so much as a group of individuals who shared a point of view, but a point of view or
way of organizing experience that shared individuals in the sense that its assumed distinctions,
categories of understandings and stipulation of relevance and irrelevance were the content of the
consciousness of the community members who were therefore no longer individu- als but, in so far
as they were embedded in the community's enterprise, community property', see id, Doing what
Comes Naturally (Clarendon Press, Oxford, 1989) 141-2.

Issue 3 maybe

Article 3 over the acts alleged in the indictment.37 Interestingly enough, in the Slobodan Milosevid
case, the ICTY seemed to countenance the thesis that the Resolutions in question should be
interpreted like treaties.38 However, the context of that dictum indicates that the equation of the
Statute with a treaty was made solely for the purpose of applying the provision of Article 27 of VCLT,
namely that 'a party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty,' to the Statute, in particular Rule 58 and the Federal Republic of Yugoslavia
(FRY).39 Therefore, no broader deductions with respect to the the interpretation per se of such
instru- ments should be drawn from the above pronouncement of the Tribunal.

Kosovo case

eral Assembly’s request. The Court observes that UNMIK regulations, including regulation 2001/9,
which promulgated the Constitutional Framework, are adopted by the Special Representative of the
Secretary-General on the basis of the authority derived from Security Council resolution 1244 (1999),
notably its paragraphs 6, 10, and 11, and thus ultimately from the United Nations Charter. The
Constitutional Framework derives its binding force from the binding character of resolution 1244
(1999) and thus from international law. In that sense it therefore possesses an international legal
character. 89. At the same time, the Court observes that the Constitutional Framework functions as
part of a specific legal order, created pursuant to resolution 1244 (1999), which is applicable only in
Kosovo and the purpose of which is to regulate, during the interim phase established by resolution
1244 (1999), matters which would ordinarily be the subject of internal, rather than international,
law. Regulation 2001/9 opens with the statement that the Constitutional Framework was
promulgated “[f]or the purposes of developing meaningful self-government in Kosovo pending a
final settlement, and establishing provisional institutions of self-government in the legislative,
executive and judicial fields through the participation of the people of Kosovo in free and fair
elections”. The Constitutional Framework therefore took effect as part of the body of law adopted
for the administration of Kosovo during the interim phase. The institutions which it created were
empowered by the Constitutional Framework to take decisions which took effect within that body of
law. In particular, the Assembly of Kosovo was empowered to adopt legislation which would have
the force of law within that legal order, subject always to the overriding authority of the Special
Representative of the Secretary-General. 90. The Court notes that both Security Council re

90. The Court notes that both Security Council resolution 1244 (1999) and the Constitutional
Framework entrust the Special Representative of the Secretary-General with considerable
supervisory powers with regard to the Provisional Institutions of Self-Government established under
the authority of the United Nations Interim Administration Mission in Kosovo. As noted above (see
paragraph 58), Security Council resolution 1244 (1999) envisages “an interim administration for
Kosovo . . . which will provide transitional administration while establishing and overseeing the
development of provisional democratic self-governing institutions” (para. 10). Resolution 1244
(1999) further states that “the main responsibilities of the international civil presence will include . . .
[o]rganizing and overseeing the development of provisional institutions for demo440 UNILATERAL
DECLARATION OF INDEPENDENCE (ADVISORY OPINION) 41 cratic and autonomous self-government
pending a political settlement, including the holding of elections” (paragraph 11 (c)). Similarly, as
described above (see paragraph 62), under the Constitutional Framework, the Provisional
Institutions of Self-Government were to function in conjunction with and subject to the direction of
the Special Representative of the Secretary-General in the implementation of Security Council
resolution 1244 (1999).

In addition, pursuant to paragraph 21 of Security Council resolution 1244 (1999), the Security
Council decided “to remain actively seized of the matter” and maintained the item “Security Council
resolutions 1160 (1998), 1199 (1998), 1203 (1998), 1239 (1999) and 1244 (1999)” on its agenda (see,
most recently, Report of the Security Council, 1 August 2008-31 July 2009, General Assembly, Official
Records, 64th session, Supplement No. 2, pp. 39 ff. and 132 ff.). Furthermore, Chapter 14.3 of the
Constitutional Framework sets forth that “[t]he SRSG . . . may effect amendments to this
Constitutional Framework

1. Interpretation of Security Council resolution 1244 (1999) 94. Before continuing further, the
Court must recall several factors relevant in the interpretation of resolutions of the Security
Council. While the rules on treaty interpretation embodied in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties may provide guidance, differences between
Security Council resolutions and treaties mean that the interpretation of Security Council
resolutions also require that other factors be taken into account. Security Council resolutions
are issued by a single, collective body and are drafted through a very different process than
that used for the conclusion of a treaty. Security Council resolutions are the product of a
voting process as provided for in Article 27 of the Charter, and the final text of such
resolutions represents the view of the Security Council as a body. Moreover, Security Council
 resolutions can be binding on all Member States (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 54, para. 116),
irrespective of whether they played any part in their formulation. The interpretation of
Security Council resolutions may require the Court to analyse statements by representatives
of members of the Security Council made at the time of their adoption, other resolutions of
the Security Council on the same issue, as well as the subsequent practice of relevant United
Nations organs and of States affected by those given resolutions.

97. First, resolution 1244 (1999) establishes an international civil and security presence in Kosovo
with full civil and political authority and sole responsibility for the governance of Kosovo. As
described above (see paragraph 60), on 12 June 1999, the Secretary-General presented to the
Security Council his preliminary operational concept for the overall organization of the civil presence
under UNMIK. On 25 July 1999, the Special Representative of the Secretary-General promulgated
UNMIK regulation 1999/1, deemed to have entered into force as of 10 June 1999, the date of
adoption of Security Council resolution 1244 (1999). Under this regulation, “[a]ll legislative and
executive authority with respect to Kosovo, including the administration of the judiciary”, was
vested in UNMIK and exercised by the Special Representative. Viewed together, resolution 1244
(1999) and UNMIK regulation 1999/1 therefore had the effect of superseding the legal order in force
at that time in the territory of Kosovo and setting up an international territorial administration. For
this reason, the establishment of civil and security presences in Kosovo deployed on the basis of
resolution 1244 (1999) must be understood as an exceptional measure relating to civil, political and
security aspects and aimed at addressing the crisis existing in that territory in 1999.

98. Secondly, the solution embodied in resolution 1244 (1999), namely, the implementation of an
interim international territorial administration, was designed for humanitarian purposes; to provide
a means for the stabilization of Kosovo and for the re-establishment of a basic public order in an
area beset by crisis. This becomes apparent in the text of resolution 1244 (1999) itself which, in its
second preambular paragraph, recalls Security Council resolution 1239, adopted on 14 May 1999, in
which the Security Council had expressed “grave concern at the humanitarian crisis 443 UNILATERAL
DECLARATION OF INDEPENDENCE (ADVISORY OPINION) 44 in and around Kosovo”. The priorities
which are identified in paragraph 11 of resolution 1244 (1999) were elaborated further in the so-
called “four pillars” relating to the governance of Kosovo described in the Report of the Secretary-
General of 12 June 1999 (paragraph 60 above). By placing an emphasis on these “four pillars”,
namely, interim civil administration, humanitarian affairs, institution building and reconstruction,
and by assigning responsibility for these core components to different international organizations
and agencies, resolution 1244 (1999) was clearly intended to bring about stabilization and
reconstruction. The interim administration in Kosovo was designed to suspend temporarily Serbia’s
exercise of its authority flowing from its continuing sovereignty over the territory of Kosovo. The
purpose of the legal régime established under resolution 1244 (1999) was to establish, organize and
oversee the development of local institutions of self-government in Kosovo under the aegis of the
interim international presence.
work adopted thereunder. 111. The Court recalls that this question has been a matter of controversy
in the present proceedings. Some participants to the proceedings have contended that the
declaration of independence of 17 February 2008 was a unilateral attempt to bring to an end the
international presence established by Security Council resolution 1244 (1999), a result which it is
said could only be effectuated by a decision of the Security Council itself. It has also been argued
that a permanent settlement for Kosovo could only be achieved either by agreement of all parties
involved (notably including the consent of the Republic of Serbia) or by a specific Security Council
resolution endorsing a specific final status for Kosovo, as provided for in the Guiding Principles of the
Contact Group. According to this view, the unilateral action on the part of the authors of the
declaration of independence cannot be reconciled with Security Council resolution 1244 (1999) and
thus constitutes a violation of that resolution.

117. Such reference to the Kosovo Albanian leadership or other actors, notwithstanding the
somewhat general reference to “all concerned” 450 UNILATERAL DECLARATION OF INDEPENDENCE
(ADVISORY OPINION) 51 (para. 14), is missing from the text of Security Council resolution 1244
(1999). When interpreting Security Council resolutions, the Court must establish, on a case-by-case
basis, considering all relevant circumstances, for whom the Security Council intended to create
binding legal obligations. The language used by the resolution may serve as an important indicator in
this regard. The approach taken by the Court with regard to the binding effect of Security Council
resolutions in general is, mutatis mutandis, also relevant here. In this context, the Court recalls its
previous statement that:

“The language of a resolution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25,
the question whether they have been in fact exercised is to be determined in each case, having
regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter
provisions invoked and, in general, all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council.” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 53, para. 114.)

The language of Security Council resolution 1244 (1999) is at best ambiguous in this regard. The
object and purpose of the resolution, as has been explained in detail (see paragraphs 96 to 100), is
the establishment of an interim administration for Kosovo, without making any definitive
determination on final status issues. The text of the resolution explains that the “main
responsibilities of the international civil presence will include . . . [o]rganizing and overseeing the
development of provisional institutions for democratic and autonomous self-government pending a
political settlement” (para. 11 (c) of the resolution; emphasis added).

122. The Court has concluded above that the adoption of the declaration of independence of 17
February 2008 did not violate general international law, Security Council resolution 1244 (1999) or
the Constitutional Framework. Consequently the adoption of that declaration did not violate any
applicable rule of international law.
East timor v Netherlands
A4 It is noteworthy that the Court did not refer to Article 1 of the Convention on the Rights
and Duties of States (26 December 1933) 165 LNTS 19, entered into force 26 December
1936 (‘Montevideo Convention’), which often is a common starting point for a discussion of
the criteria for statehood, and reflects (part of the) customary international law on the matter.
Arguably this was the case also in 1980. For example, a standard English language
handbook, Brownlie, pp 74–76, referred to Article 1 of the Montevideo Convention.
Interestingly, the authoritative Dutch language international law handbook of the time (a
likely source for the judges in this case), JPA Francois, ‘Grondlijnen van het
Volkenrecht’ (3rd edn NV Uitgevers-Mij WEJ Tjeenk Willink, Zwolle 1967), did not mention
the Montevideo Convention.

CODIFYING CUSTOM Author(s): Timothy Meyer Source: University of Pennsylvania Law Review ,
March 2012, Vol. 160, No. 4 (March 2012), pp. 995-1069

g. Exclusion can take the form of negotiat- ing a regional treaty that purports to codify customary
rules, such as the Montevideo Convention on the Rights and Duties of States,1

51 See Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19
(codifying the customary rules of statehood); see also D.J. HARRIS, CASES and Materials on
International Law 102 f 2 (5th ed. 1998) (observing that the Montevideo Convention is widely
accepted as codifying the customary requirements of statehood) .